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Book_ 



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t 
SPEECH 



OF THE 



HON. RICHARD STOCKTON, 



DELIVERED IN THE 



HOUSE OF REPRESENTATIVES OF THE UNITED STATES, 



On the 10th December, 1814, 



ON A BILL 



** To authorise the President of the United States to call upon the 
several States and Territories thereof for their respective quotas 
of eighty thousand four hundred and thirty Militia for the 
defence of the Frontiers of the United States against invasion." 



GEORGE-TOWN : 

l'CBLISHED BY RICHAIUJS & UAI.LORT. 

1814. 



/ 



El 35"9 

■ $86 



M ' 



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i 



HON, R. STOCKTON'S SPEECH 



Mr. Speaker — 

I have moved for the indefinite postponement 
of this bill, before the amendments made in the 
Committee of the whole House are disposed of — not 
with any wish to interpose artificial obstructions to 
its passage through the House, but to secure to my- 
self, and to other gentlemen, the common privilege 
of expressing our opinions upon a great political sub- 
ject — a precaution made the more necessary, by the 
intimations thrown out yesterday of an intention of 
stopping further discussion by a resort to the previ- 
ous question. I can assure you, sir, that I rise to 
advocate this motion in no spirit of party or of op- 
position ; but because I feel myself constrained by 
all the ties which bind me to my constituents and 
country, to make use of every exertion to prevent 
the passage of the bill. I know the difficulties which 
at this moment surround the government and the 
nation. I know and I feel, as sensibly as any mem- 
ber can feel — the crisis — the awful crisis, at which 
our public affairs have arrived. I know, sir, that 
we are engaged in a war with a powerful, irritated 
and revengeful enemy. Since the late dispatches 
from Europe have been submitted to us, I have been 
induced to believe that the administration could not 
at this moment make a just and honorable peace if 
it ivere now really disposed so to do. I admit that 
there is too much ground to apprehend that if thi.-; 
war is continued for another campaign, it will require 
a great exertion to maintain the just rights and in- 
tegrity of the United States. I know that our trea- 



eury is empty and must be tilled — that our public 
credit is gone and must be restored — that the ranks 
of our army are thin and must be encreased — all this 
I know — and, without stopping now to enquire why 
or wherefore these things are, I am ready to act ac- 
cordingly. I am willing to accept the invitation of 
an honorable member from Kentucky (Mr. Duval) 
and to sacrifice for the good of the public. I am 
willing at this moment to forget all that I have ever 
thought and believed of this terrible war — I am wil- 
ling to forget the folly, the political insanity, in 
which it Avas declared — the neglect, the culpable ne- 
glect to provide the necessary means of carrying it 
On — the waste — the profuse and shameful waste of 
blood and treasure, which has marked its progress. 
Although every event since that fatal step was taken 
has continued me in these opinions, I am willing to 
forget them all, and to act as if they did not exist. 
I am willing to place them upon the altar of public 
Safety, and there to immolate them. I am willing 
for myself to go further, and to refrain from all irri- 
tating [pressions in reference to those who hold the 
reins of government and control the destinies of the 
nation. I most sincerely pray that our gloomy fore- 
bodings as to the issue of affairs in their hands may 
not be realised. That they may be able to extricate 
the country from the daggers which surround it, and 
to make a speedy, lasting and honorable peace. I 
have already acted in conformity with these profes- 
sions, by voting during this session for every mea- 
sure intended to encrease your revenues or armies, 
which appeared to me to be constitutional, and 
founded on principles of justice; and equality — and I 
shall continue so to act. Bat, Mr. Speaker, there 
are bounds which every man of principle must ob- 
serve. There are some limits, which neither ar- 
guments, dlfficultii & f or da,ngers can induce me to 
exceed. The limits w) ich I have prescribed to 
myself in providing foi the exigencies of the day 
are just and . spensible — they are, the constitu- 
tion ; the general principles of political expediency ; 



the eternal immutable principles of justice, eqiwi 
justice, to all the community. These principles I 
must and will adhere to at all hazards. To me, sir, 
public wants can afford no inducement to vote for 
an act which my best judgment informs me tran- 
scends the legitimate powers of Congress. To me, 
state necessity can be no plea for resorting to wild 
and visionary plans, which though they may be ho- 
nestly intended to redeem the public credit, I con- 
scientiously believe will sink it deeper into ruin. 
Nor, sir, will necessity ever induce me in the impo- 
sition of taxes to violate the great principles of jus- 
tice and equality. With these exceptions I am wil- 
ling to go as far as any other member in providing; 
the proper means of defending the rights and inter- 
ests of these United States. In regard to the bill 
now on the table, I have read it with attention, be- 
stowing upon it all the consideration its importance 
demanded. I have endeavored to analize its objects 
and provisions. I have listened with the most re- 
spectful attention to every thing which has been said 
in its favor. The result is a solemn conviction, that 
Ave have no constitutional right to pass the hill in its 
present shape — and that it will be destructive of the 
best interests of this country to enact it. Will you 
listen to me, Mr. Speaker, whilst I state as con- 
cisely as I can, the reasons which have induced me 
to form this opinion? In performing this task, I 
shall endeavor to adhere strictly to the bill. There; 
are, indeed, other most important matters intimately 
connected with it, which, as parts of the same ge- 
neral plan, would be proper objects of remark; but 
from these I shall refrain at present — I allude parti- 
cularly to the proposed draft of the Militia to fill the 
ranks of the regular army. On this monstrous de- 
vice I shall make no remarks now. That bill may 
never be called up. It is already damned in public 
estimation, I trust that it is sleeping the sleep 
of death., and that it will never be roused to affright 
and afflict us. Mr. Speaker, there are certain gene- 
ral principles which lie at the bottom of this subject* 



6 

—In a limited government, such as that established by 
the Constitution of the United States, they may tru- 
ly be called fundamental. By some they may be 
considered as familiar and trite — and by others as 
scarcely worthy of attention in these enlightened 
days. But the great men to whom we are indebted 
for our independence and civil institutions thought 
differently. Tliey supposed that they were all-im- 
portant. They believed that it was always neces- 
sary to bear them in mind— and advisable frequently 
to recur to them, to keep this government within its 
proper sphere, and to defend the rights and liberties 
of the people. One of these general principles is 
that the Militia of the several states belongs to the 
people and government of the states — and not to the 
government of the United States. I consider this, 
sir, as a proposition too clear to require illustration, 
or to admit of doubt. The militia consists of the 
whole people of a state, or rather of the whole male 
population capable of bearing arms ; including all, 
of every description, avocation or age. Exemption 
from militia duty is a mere matter of grace. This 
militia, being the very people, belongs to the people, 
or to the state governments, for their use and protec- 
tion. It was their' s at the time of the revolution ; 
under the old confederation — and when the present 
form of government ivas adopted. Neither the peo- 
ple nor their state governments have ever surrender- 
ed this their property m the militia to the general 
government, but have carefully kept and preserved 
their general dominion or control, for their own use, 
protection and defence. They have, it is true, 
granted or lent (if I may use such an expression) to 
Congress a special concurrent authority or power 
over the militia in certain cases ; which cases are par- 
ticularly set down — guarded — limited and restricted? 
as fully as the most scrupulous caution, and the use 
of the most apt and significant words our language 
affords could limit and- restrict them. The people 
have granted to Congress a right to call forth the 
militia in certain cases of necessity and emergency 



7 



-—a right to arm and organize tlicm — and to pre- 
scribe a plan, upon which they snail be disciplined 
and trained. When they are called into the service 
of the United States (and they cannot be calleu un- 
less upon the happening of one of the contingencies 
enumerated) they are to be under the commaiid of 
the President. Hence, it follows, that the general 
power, authority or jurisdiction remains in the state 
governments. A special, qnaliiied, limited and con- 
current power is vested in Congress, to be exercised 
when the event happens, and in the manner pointed 
out, prescribed and limited in the Constitution. And 
hence it also follows, that this delegated power can- 
not be executed upon any other occasions, nor in 
any other ways than those prescribed by the Consti- 
tution. There is another general rule or principle 
of construction to which I must allude. It is, that 
all particular, special, limited powers, taken from 
or carved out of the general power, must be constru- 
ed strictly. The general power remains in full force, 
unimpaired, except where it is expressly granted 
away, and the construction must be on the words of 
the grant, and not by recurring to the doctrine of 
analogy or parity of reason. This is a rule applica- 
ble to all grants of power, public or private, but it 
is particularly to be attended to in grants of public 
authority ; and most of all in those solemn grants 
denominated Constitutions. These grants being 
from the people to their rulers, are always delibe- 
rately framed. They are penned with the utmost 
accuracy and precision of language. All powers 
intended to be granted are granted—- and those not 
included in the terms made use of are withheld. 
This is not a mere technical rule of the schoolsmen 
or the forum. It is founded in reason, good sense, 
and justice ; and is all-important in the construction 
of constitutions. If the words of such grants, are de- 
parted from, upon any pretence, what safety do they 
afford ? If reasoning by analogy is once permitted, so 
that cases not enumerated but supposed to stand upon 
a footing in point of reason and expediency, are, by 



s 

liberal construction, held to be included in it, what 
security is there but the discretion of those who un- 
dertake to expound it? A constitution should be 
considered as a pillar of marble, not as a figure 
of wax; it must remain as it comes from the 
hand of the artist, and not be moulded by officious 
liands into a more convenient shape. The rule 1 
have laid down, has been considered of sufficient im- 
portance to be engrafted into the constitution itself. — 
The tenth amendment, in ordaining that Ci all powers 
"not delegated by the constitution, nor prohibited by 
li it to the states, are reserved to the states respec- 
" lively and to the people," declares in the spirit of the 
rule I have stated, that all powers not granted to the, 
Congress by the constitutional charter, remain with, 
the people or the state governments. 

Mr. Speaker, this special, limited, concurrent pow- 
er over the militia, is given by the States to the Con- 
gress only in three cases — " To enforce the laws — 
" suppress insurrections, and repel invasion." I call 
it a special concurrent power, and it is clearly no 
more ; for the states, notwithstanding this grant, re- 
tain the power to call forth their militia for the same 
or any other lawful purposes. There is, then, no 
grant of absolute power even in these cases ; and the 
people and the state governments have not only the 
right of insisting upon a strict observance of the li- 
mitation; but the corresponding right to resist all en- 
croachments upon what they have reserved unto 
themselves — for as it is of the very essence of a li- 
mited government to be kept within its proper orbit, 
so it is the unquestionable right and duty of the peo- 
ple to oblige those who administer it, to preserve the 
boundary, and to resist and repel illegal encroach- 
ments. 

I consider these principles to be unquestionable. 
They will, I should hope, receive the assent of every 
gentleman of this House. Be this as it may, I flatter 
myself that they will stand the test of the severest 
scrutiny — and being established, the only question 
must be, whether the act now under consideration is 



9 

a proper execution of the limited authority vested in 
Congress, to " call forth the militia to repel in^ 



vasion." 



In examining this question, 1 shall not follow the 
example which has been set by some of the advocates 
for the bill. I shall spend no time in ransacking 
ancient and modern history for precedents or examples 
of government's asserting the right of making every 
man a soldier. In my opinion, it is nothing to the 
purpose to examine what was the law in Greece or 
Rome, or what has been the practice of George the 
third or of Bonaparte- — the question is exclusively an 
American question. I shall keep it in mind, that I 
am in the American Congress, considering an Ame- 
rican act, to be tested by the American Constitution, 
and shall not trouble the House in going over matters 
so entirely useless and inapplicable. 

The bill before us is curiously framed. There is 
little or no coincidence between the title and the 
provisions of the bill 5 between the pretended and 
the real objects. But its best friends can discover 
only two objects apparent on its face : 1st. To call 
out 80,000 militia for the defence of the frontiers 
against invasion — or, Sndly. To compel these 80,000 
militia to furnish 40,000 regular soldiers. 

Supposing these to be the real objects, and that 
the provisions of the bill were adapted to them, it 
can be easily proved that they are unauthorised by 
the Constitutiou. Let me ask, sir, what section of 
the Constitution empowers Congress to call forth 
the militia to defend the frontiers from invasion ? 
None can be produced. And it never was the in- 
tention of the people to grant such a power. A 
power to call forth the militia to " defend the frontiers 
against invasion," would be a general power to 
make use of the militia during a war— it would lie 
destitute of all substantial limitation, and might he 
exercised without control. Such a power, not de- 
pending upon notorious fact, would include in it a 
right to order out the militia for the common pur- 
poses of war — when, .and where, and for as Ions; a 

B 



10 

time, as Congress should see fit. If Congress may 
call them forth for the general purpose of defence, 
Who is to judge — who but itself can judge of the 
necessity and propriety of the call ? Such a power 
would necessarily destroy those limitations so care- 
fully provided, and place the whole militia of the 
United States under the control of the General Go- 
vernment for the general purposes of war. They 
might be marched from the seaboard to the North- 
Western frontier, and there be kept during a war, 
doing duty as garrison soldiers — or, in other words, 
as regular soldiers, under the pretext, that they were 
called forth to defend the frontiers. Indeed I can 
see no reason why, if this construction is correct, 
they may not be marched to those remote regions 
before the war is actually declared : or why they may 
not be kept there until it ended. If the power be 
that of employing the militia for the general pur- 
poses of defence, where is the necessity of waiting 
until the War is actually declared ? Surely, a pru- 
dent government would not wait till that event took 
place, before it provided the means of defence. A 
wise government intending to Wage a war would be 
so provident as at least to place its frontiers in a state 
of defence, before it drew the sword : and as the 
duty of defending the frontiers would exist as long 
as the war, it is manifest that if the militia could 
be called forth for this general purpose, they might 
be detained there, as long as the occasion existed ; 
or, in other words, during the war. 

But no such power is given, or was intended to be 
given. The power actually given to Congress is to 
call forth the militia to repel invasion — not to defend 
the frontiers from invasion. The power claimed by 
this bill is, that whenever Congress think an inva- 
sion probable, they may call forth the militia to 
defend against it. 

The power granted by the Constitution is, that 
when invasion takes place Congress may call forth 
the militia to repel it. 

These powers are not the same, but essentially 



11 

and substantially different. The one is general, 
depending for its just exercise on will and discretion. 
The other is limited, guarded by express words, 
and defended against perversion, by tne requirement 
of a notorious fact, of the existence of which, the 
state governments are as competent to judge and 
decide, as the government of the United States. 

The power claimed, in its practical operation, 
places the militia of the states, without limitation as 
to number or time of service, in the power of 
Congress. 

The power granted only authorises calling them 
forth on a particular emergency, which carries with 
it its own limitation, both as to numbers and time of 
service. 

flie power claimed subjects the militia to the ge- 
neral duty and service of the war. It makes them, 
in truth, Regulars, though they are called militia ; 
for the President may command them to perforin 
every service without restriction, and at any place. 

Tlie power granted preserves the essential quality 
of being called out in aid of a regular army, upon 
the contemplated emergency happening, and of re- 
turning to their homes as soon as the emergency has 
ceased. 

The power claimed subjects the citizen to be made 
a soldier without his consent, for any length of time. 
For, whether he shall serve one year — or two, or 
ten — or during a war, is admitted to be only a mat- 
ter of sound discretion. 

Tlie power granted leaves him all his rights as a 
citizen — guards and protects him in the service re- 
quired — calls him to arms to repel an invader, ;md 
as soon as he is repelled, returns the citizen to his 
family. 

Mr. Speaker, I consider the claim now for the 
first time set up by the general government to the 
personal service of every citizen — subjecting him to 
be made a soldier, under the pretence of defending 
against invasion — and binding him to military ser-r 
vice whether it happens or not and after the enemy 



zs expelled, as entirely unwarranted, whether w& 
regard the words of the constitutional grant, or the 
manifest intention of its makers. The people have 
never vested such a power in Congress — they have 
reserved it to themselves — or it is deposited, together 
with the general mass of sovereignty, in the state 
governments. 

The noxious illegal character of this bill is not at 
all taken away or altered by the amendment made 
in committee, requiring only a service of one year 
instead of two. ' It is true that it alleviates its harsh- 
ness. It will be less oppressive. It may be more 
palatable, and for that reason it may be the more 
dangerous. When the oppressor assumes the form 
of a giant he creates alarm, and will be sure to 
meet with due opposition. When oppression comes 
like a mighty flood to overwhelm the privileges of 
the people, they will not fail to breast the torrent 
with firmness and spirit. But, when he assumes a 
reasonable shape — a common form— when the mea- 
sure carries with it the imposing pretence of public 
wants, or public defence — -and especially, when the 
original plan is softened and meliorated in its appli- 
cation ; then we are apt to comfort ourselves that it 
is no worse, and finally, to disregard the dangerous 
principle which lurks beneath. 

The amendment leaves the objection to the princi- 
ple of the bill in full force. Congress have it not 
in their power to call forth the militia for a year, a 
month, or a day, except to repel invasion, execute 
the laws, and suppress insurrection. 

It appears to me that the power now claimed, of 
rising the militia of the several states, for the general 
purposes of war, under pretext of defending the 
frontier from invasion, is not only unfounded, in the 
fair interpretation of the Constitution, by the words 
and evident meaning of the granting clause, but that 
it is inconsistent with other parts of the charter ; that 
it reverses the whole plan or scheme of government ; 
destroying its symmetry, and removing some of it? 
.host important balances and checks* 






13 

One principal and avowed object of tlie federal 
Constitution was, to provide for the public defence 
find to take that duty from the individual states, and 
impose it upon the general government. Experi- 
ence, during the war of the revolution, had taught 
how little the state governments were to be relied on 
to perform this important task. It had been found 
that acting without obligatory union, oftentimes un- 
der the influence of narrow, interested politics, they 
were not to be trusted for steady efforts, proportion- 
ate to their relative ability, or to the interests which 
they had at stake. The People had become tired 
of a government of requisitions, which could not be 
enforced. They called for one, which, acting im- 
mediately on the population, would possess the 
power of securing due respect to its own constitu- 
tional demands* Hence they imposed the great duty 
of public defence on the general government, and 
furnished it with most ample means to enable it to 
perform the service required. They endowed it, not 
only with the high powers of making war and peace, 
but with those also of raising regular armies, and 
of imposing taxes. Thus it became invested with 
the great powers of the sword and the purse, of 
raising men and money, without limitation, as to 
number or sum; having no bounds but the public 
wants, and the great principles of civil liberty. 
Having thus provided and vested in the federal go- 
vernment, all the means requisite to the great end 
in view, the state governments are absolved from 
the general duty, and are merely required to fur- 
nish their militia to aid in repelling an invader. It 
is evident, then, to me, that the Constitution con- 
templated a regular army as the steady and proper 
means of public defence, in time of war; the mili- 
tia as a temporary auxiliary force, to be called in 
aid, on emergency or sudden onset. But the plan 
of this bill reverses every thing. Instead of the 
federal government providing for the public defence, 
by the means surrendered to it; instead of raising 
armies, to defend the states, in a war declared by 



14 

itself— if calls on the states to defend the Union. 
TiiC .nilitia of iue particular states mast be ^.med 
forth to defend the United ata^es. Tiie inihua is 
converted into tue principal force, tiie regulars into 
the auxiliary! 

The experience of the revolution, and the pater- 
nal warnings of their illustrious Goief nad further 
taught tue People, that militia were not to be relied 
on in a war with a foreign power ; that tney were 
a most expensive and ineifectnai force ; that every 
principle of sound policy foroad tneir being called 
from their occupations and business, to he made 
soldiers; nevertheless, their usefulness in aiding a 
regular army, on sudden emergency, had oftentimes 
been experienced, and was well knowu. The plan, 
therefore, was to defend the country, in case of fo- 
reign war, by regulars — and to add the qualified 
authority, to call forth the militia, on the emergency 
contemplated. This was a wise and safe course, 
and it is folly and weakness in the extreme to at- 
tempt to alter it, 

There was also a further reason for leaving the 
general authority over the militia in the state go- 
vernments, and denying it to the general govern- 
ment ; that it might be a check upon the great pow- 
ers of war and peace, sword and purse, thus sur- 
rendered to the general government. The federal 
government is not only a limited government, but it 
is furnished with its balances and checks. It was 
framed upon die principle, that no set of men can 
be safely trusted with power, without some means, 
left elsewhere, to keep it within proper bounds. It 
was this proud principle of jealousy of power, 
wherever it might be deposited, that produced the 
revolution. Tint great event was not so much 
brought about by actual oppression, as by the as- 
sertion of principles which were derogatory to the 
rights of freemen, So thought the great men who 
formed and adopted this Constitution. They were 
high-minded Uevublicans indeed, and not merely in 
name. Their political creed was, that no set of 



IW, 



15 

men were to be trusted with discretionary powers, 
They knew thut paper limitations were useless, un- 
less accompanied b,y the means of defence. Hence 
they denied some powers to the general, and some 
to the state governments. They iimited others, and 
when they bestowed general powers on the federal 
head, the means oi a wholesome control was left 
witii the people, and the state governments. But 
these salutary principles are now out of fashion. 
They are either unknown, forgotten, or disregard- 
ed. The plan of the Republican administration 
luis been evidently to accumulate power in the Exe- 
cutive branch of the government, from the President 
down to the lowest collector or tax gatherer. Scarce- 
ly is a bill reported upon any subject relating either 
to war or revenue, which does not contain some 
covert attack on the unquestionable rights of a free 
people. 

It is manifest to me that the Constitution contains 
no grant of the militia to the federal government for 
the general purpose of even defensive war. When 
this instrument was before the people such a power 
as is now contended for was never attributed to it, 
either by its enemies or its friends. On the other 
hand, when the great and dangerous powers actu- 
ally granted by it, such as those of making war and 
peace, raising armies, and imposing taxes, were 
objected to by honest and enlightened opposers, the 
answer was (and it is a sound one if the constitution 
is executed in its true sense and spirit) that there 
was a sufficient security against abuses in the habits 
of the people, their aversion from war, and their 
spirit of liberty ; but especially in the state govern- 
ments, and their militia. And I might, with per- 
fect safety, hazard the assertion, that if the power, 
now contended for, to call forth the w T hole militia 
for the general purposes of war, without any regard 
to the constitutional limitation, or to time, or place 
of service, had been inserted, in plain terms in the 
charter, it would have been rejected. 



in 

But, Mr. Speaker, perhaps it may be demanded 
t»f me wiieiuer the militia may noi oe called forth 
until an invasion actually taK.es place. It may be 
asked, must tne government wait until the enemy 
lands upon our shores, before it can resort to this 
force? Upon tins point I would- answer, that the 
act of Congress passed in 1/95 to carry into effect 
that part of the Constitution now under considera- 
tion places this subject on its proper footing. That 
act authorises the President to cait forth the militia 
in case of invasion or imminent danger of invasion, 
This in terms is an extension of the provisions of 
the instrument, and it certainly goes to the very verge 
of the Constitutional limit; but I am disposed to 
think that it is a sound exposition of its true intent 
and meaning. The words of this law, not to be 
found in the Constitution, are these — " imminent 
danger of invasion" and they seem to have been 
carefully selected for their accuracy and precision. 
By imminent danger is meant— impending, threat- 
cuing, danger — danger at hand. It does not in- 
clude danger only expected, or probable, resulting 
from a general state of war. For instance; it is no 
such emergency as is provided for in the constitution, 
that we are engaged in a war with a powerful nation, 
and that there is a moral certainty that she will in- 
vade some part of our territory. This would induce 
a provident administration to have a good army in 
the field, but does not authorise ordering the militia 
into actual service. But if the President were now 
in possession of information, that a large expedition 
had been prepared for and was on its way to attack 
New Orleans (as we have reason to believe he is) 
lie need not delay his call on the militia, until the 
enemy shall arrive, but he may lawfully call out 
those of the contiguous states, to meet and repel 
that invasion, whenever the enemy shall make his 
appearance. So, if a fleet should arrive at Sandy 
Hook, or at the capes of the Delaware ; it might 
require a lon^lfaoe to enable them to %et up and land 
their troops; still the President need not wait until 



they have landed; because these are cases of inva- 
sion — or of imminent danger of invasion within the 
fair meaning of the words of the Constitution. 

This statute of 1795 asserts no power to call forth 
the militia for the general purposes of war, or to 
defend the frontiers ; but only to repel invasion ac- 
tually made or depending. Yet this statute was 
drawn with the utmost care, and was doubtless in- 
tended to occupy all the ground given to the general 
government by the Constitution, as it was then un- 
derstood. It is entitled to the utmost respect and 
weight, as a legislative declaration, how far this 
right extends, and what are its just limits. 

It is not necessary to detain the House in remark- 
ing on the circumstance that the enemy are in pos- 
session of some part of the territory of the United 
States, as that circumstance can afford no aid to 
this bill ; and indeed does not seem to be much 
relied on. None of the provisions of this bill are 
adapted to that case. It is not designed to enable the 
President to call forth the militia to expel them. The 
existing laws are already fully competent to this 
end. He may call forth the militia to repel this in- 
vasion. But the object of this bill is to form a mili- 
tia armament, not to expel those invaders, but to 
serve for one year. The enemy is left in quiet pos- 
session of what he has taken and this army is to be 
raised to carry on the war as the President shall 
direct. It may be marched into Canada, leaving 
the invaders behind. But more of this hereafter. 

As to the second object of this bill which is to in- 
duce this corps of 80,000 militia to furnish 40,000 
regulars ; to be sure it does not figure in the title of 
the act, yet it has been avowed by many gentlemen 
to be the real object which this bill is to attain. 

I cannot avoid remarking how admirably the title 
of this act has been contrived, to give notice of a 
matter which is not to be found in the bill — that is, 
a plan to defend the frontiers against invasion, and 
to conceal what it does contain, an illegal device to 
compel the militia to furnish recruits for the regular 

r, 



18 

army. But surely those gentlemen who excuse 
themselves in voting for it, although they acknow- 
ledge that it is 7io militia bill, because it affords a 
prospect of supplying the ranks of the regular army; 
surely such gentlemen have not considered, that if 
Congress have no right to call for the militia as this 
bill does call for them, neither can it possess even a 
pretence of right to require them to furnish regular 
soldiers. The furnishing half the number of regu- 
lars is the commutation proposed for the militia ser- 
vice. But if there is no right to require the prin- 
cipal duty there can be none to require the substitute. 
If the obligation to serve in the militia as this bill 
requires does not exist, the alternative ought not to 
exist. This need only be stated to receive the as- 
sent of every just man in the community. Then, to 
demand by law what we have no right to demand — - 
to impose on the people a burthen which we have no 
right to impose, and oblige them to perform it, or 
to provide a substitute, will at once give to the whole 
process the character of illegal compulsion. To 
class the militia for purposes not within our control ; 
to require of them a service which they are not bound 
to perform, and then to excuse them if they will furnish 
half the number of regular soldiers — what is this 
but coercion? What is this but classing the militia, 
and drafting them, to furnish recruits for the regular 
ai'my ? It becomes conscription, which is nothing 
more than obliging men to serve in the army, or to 
furnish others to serve, without their consent, and 
without the authority of constitutional law. 

It is conscription of the most odious character— 
the form and shape given to it are the most offen- 
sive that could be proposed to a free people — it is 
concealed and covert — it is injustice perpetrated un- 
der the pretence and color of rightful authority. 

The friends of the bill are then reduced to this 
dilemma. If the bill is really a militia bill, it is 
unconstitutional and should be rejected. If it is 
not a militia bill (as some of the majority have con- 
tiled) bur the real object is to obtain recruits, it is 



19 

s&il more objectionable and should receive no conn, 
lenance in this House. 

Mr. Speaker, I shall now proceed to consider 
the provisions of this bill. My observations will 
be general. I shall not trouble the House with de- 
scending to particulars. And I cannot refrain from 
again remarking on the title of this bill — its decep- 
tive form and character. It affects to inform the rea- 
der that he may tcithin expect to find a plan for 
calling forth the militia to defend the frontiers against 
invasion, and yet there is not a single provision to 
be found in the enacting clauses adapted to such an 
object. The plan which the bill developes, is, io 
class the militia under the directions and authority 
of the President. Thev are then to be drafted. 
Those selected are to be organized into regiments 
and brigades — and are to pass at once into the Unit- 
ed States' service. There is no provision regulating 
the particular service upon which they are to be em- 
ployed — there is nothing to confine the service to the 
constitutional emergencies- — to repel invasions* — to 
execute the laics or to suppress insurrections. But 
the men are put under martial law, and must serve 
as they shall be ordered. The bill pursues no plan 
of a militia law heretofore passed. It has not a 
militia feature in it, but on the contrary prostrates 
at once all their rights and privileges. It may, sir, 
be laid down as a general proposition, that a bill 
professing to be a militia bill, but which disregards 
and destroys all the essential qualities of the mili- 
tia armament — which deprives the militia-man of 
inherent fundamental rights*— rights ahv ays acknow- 
ledged and possessed, cannot be consistent with the 
Constitutional powers of this government. The 
rights of the militia were long known, and univer 



* After this speech was delivered, My Baylies of Mass. offered aa 
amendment providing thai t) e forcetp be" raised by this act should not 
be called rrto actvial service Bui f T the purposes of executing- the laws, 
suppressing insurrections or repelling invasions— but it was reje 

by the majority. 



2& 

&ally acquiesced in, before this government acquir- 
ed its qualified jurisdiction over them. They claim- 
ed and exercised these rights during the war of the 
revolution, and at the time of the adoption of the con- 
stitution. Congress received the powers it possesses 
subject to these privileges. They are founded in 
justice, and in the intrinsic nature of a force, com- 
posed of the whole body of the people. They are 
supported by prescription or constant usage. When 
I speak of militia rights I mean these : to be called 
out for short periods on emergency — to be taken 
from places contiguous, and not to be compelled to 
serve elsewhere ; to serve only in just rotation 
with others. An act which violates all these princi- 
ples may be safely called no militia law, but an 
unconstit utional req uis ition . 

When the bill came to us from the Senate, the 
term of service required by it was two years. 
We have reduced it to one. The principle however 
is not changed. The obligation to serve is absolute 
— peremptory — unconditional. There is no provi- 
sion limiting the service by any contingency. If 
the enemy in one month after this force shall be or- 
ganized, should be driven to the walls of Quebec, 
or be besieged in Halifax, still the militia-man must 
be a soldier. What section of the constitution, let 
me ask, authorises this ? What letter of that in- 
strument enables Congress to fix any absolute time 
of service ? There is none. The legal call is to 
repel invasion. It carries with it its own limitation. 
The obligation to serve lasts so long and no longer 
as the particular invasion for which the service is 
required exists. It is to be remarked that the act 
of 1795, before alluded to, contains no provision 
ascertaining how long the militia called forth to serve 
in the cases stated in the constitution shall serve-— 
it leaves it in this respect as it ought to be left, to 
the intrinsic limitation of the granting clause. But 
it ordains that they shall not be required to serve 
more than three months in any one year — thereby 
guarding and protecting this essential quality of 



21 

militia, service. This is a correct exposition of the 
limited constitutional grant. The words of that 
charter carried with them the intended limitation, 
and therefore it was unnecessary to insert another. 
But as it might so happen that invasion or one of 
the other exigencies might endure longer than a 
militia-man ought to he compelled to serve, care 
was taken that they should not on any pretence he 
required to serve for more than three months out of 
twelve. 

There appears to me to exist no right to fix the 
time of service hut for the purpose of establishing 
a day beyond which they shall not be required to 
serve. The period of service which the government 
may rightfully demand is quite another thing, and 
depends entirely on the exigency out of which the 
right to call them forth, may arise. If the call is 
to enforce the laws, the nghtto service ceases when 
the empire of the laws is restored. If to suppress 
insurrections : when the insurgents are quelled. If 
to repel invasion ; when the invader is driven back. 
If prudence— if reasons of state, or alledged ne- 
cessity require a longer period of service, re- 
course must be had to the state Legislatures. The 
state governments are absolute, except where they 
are controuled by their own constitutions. They 
may safely be trusted — they would co-operate with 
the general government in all necessary measures of 
defence as long as that government respected their 
rights and performed its relative duties. 

The next characteristic privilege of the militia is 
to be taken from jjlaces contiguous to that where the 
service is required — and how is this to be secured ? 
There is but one method of effecting it — adhere to 
the Constitution — construe it according to its words 
and plain intent — consider the power of Congress 
as a limited authority — confine the power of Con- 
gress to call forth the militia to the enumerated 
cases — do this, and this important privilege is se- 
cured. These arc all cases of emergency. If the 
militia cannot be called forth until the emergency 



22 

exists, then they must necessarily be taken from the 
contiguous neighborhoods or states. But, as I have 
before stated, this bill contains no provision that the 
militia shall not be called into actual service until 
the exigencies occur ; nor that they shall be called 
from the adjacent parts or neighboring states — but 
they are left in these important respects altogether 
in the power of the President. The rules of mar- 
Hal law will oblige them tq obey. They may be 
marched from Maine to Louisiana,, There is no 
limitation in regard to the place where the service is 
to be performed. In the bill, as it came to us, there 
was a section restraining the right of service to the 
state from whence the militia came or to the next 
adjoining, but this we have stricken out— thereby 
declaring our opinions to be, that the power is Unli- 
mited in this particular! and that they may right- 
fully be sent any where. As the bill now stands, 
under the specious pretext of defending the frontiers, 
the militia of New- Jersey maybe marched to Detroit 
or to Maine — acting on the favorite maxim of the 
administration, that the United States must be de- 
fended in Canada — that the invasion of that country 
is a measure purely defensive, these troops may be 
ordered to Quebec or Montreal. And if they refuse 
to pass the frontiers they are called forth to defend, 
they may be shot as mutineers. It is nothing to the 
purpose to say that the President will exercise a 
sound discretion, and will not order these men to 
serve at a great distance from their homes. If the 
constitution has not subjected the militia to the dis- 
cretion of the President, we have no right to do so 
bv law. What a Freeman may claim as an un- 
doubted right he ought not to be compelled to receive 
as a favor. 

This bill also destroys the great principle of ro- 
tation — by which I mean the important privilege of 
every freeman, not to be subject to military service, 
but in a just proportion of time with other free/men 
of his vicinage. This appears to me to be a most 
important privilege. The militia consists of all the. 



83 

people — the entire male population. They havo 
their rights not only as between them and the go- 
vernment, but as between each man and the residue, 
All cannot be called forth at a time, or the country 
would become a desert. Hence the right of each 
man is, that he shall only be called into actual ser- 
vice in just rotation with all others. To declare by 
law that one class shall absolutely serve for one, 
two, or ten years, is entirely unjust and illegal. 
Substantially, it makes them regular soldiers. Sup- 
pose the war should terminate with the year — then 
one class will have borne the whole burthen. No 
such injustice takes place if we use them as militia 
ought to be used. If we require their services ac< 
cording to the intrinsic nature of the force, and as 
the rules of justice require, all will be right. They 
should be ordered out for short periods, and be often 
relieved during a campaign, so that no one class 
should be compelled to serve for a longer time than 
its equal tour of duty may demand. Let it not be 
urged that so short a service will prevent their im- 
provement in the military art. The error is, in re. 
quiring of the militia a service to which they are in- 
competent, and for which they were never designed. 
The militia were not intended and should never be 
relied on to fight pitched battles with a disciplined 
foe. They are only calculated to serve as an irre- 
gular auxiliary force, to harrass and distress the 
enemy, upon a sudden onset. The sooner they are 
brought into action aft^r they leave their homes th& 
better. Thev must have brave men to command 
them and be employed in a service suited to their 
nature and geuius. In a service adapted to them 
they will render essential aid. Tims employed they 
dare to follow wherever tlieir officers dare to lead. 
In a camp they will learn little that is good ; 
there perhaps you may discipline select corps com- 
posed of the flower of your youth, bin the militia 
masse will learn little else than bad habits, and ta 
become disgusted with ycur service Let us then, 
abandon the vain expectation of compelling the mili- 



m 

tia to do the duty and supply the pilace of regular 
Let us respect their rights, and they will he most 
useful. If we trample their privileges under foot 
they will be less dangerous to the enemy than to 
their oppressors. 

It is most worthy of remark that in the act of 
1795, all these essential characteristics of the militia 
force are carefully preserved. That act provides 
that they shall be called from the parts most conti- 
guous to the place of danger. That they shall not 
serve more than three months in any one year ; and 
each man only in due rotation with every other able- 
bodied man of the battalion to which he belongs. 
This act is entitled as I before remarked, to the most 
profound respect, as a correct exposition of the con- 
stitutional powers of the federal government over the 
militia of the states — -not only because it was enact- 
ed whilst Washington was President, and Hamilton 
his Counsellor* but from other circumstances. It is 
a revised late — a former act, passed in 1792, had 
been found defective. It was enacted at a time when 
the government would naturally be disposed to exe- 
cute all the authority vested in it, directly after the 
formidable insurrection in the western counties of 
Pennsylvani was crushed, and when a foreign war 
had been recently expected. It is a precedent well 
worthy to be followed — but of late years its princi- 
ples have been disregarded. The time of service 
has been doubled, by acts already passed. Now 
we are to quadruple it. We have rejected or disre- 
garded its other wholesome provisions and restraints; 
and boldly demand an entire authority and control 
over the male population of the country. 

But, 'Mr. Speaker, it is apparent to me that this 
bill not only destroys the characteristic principles of 
the militia force, h"* that it prostrates at once the 
most important personal rights of our citizens, and 
also of our state governments. 

This bill will deprive all the citizens who shall fall 
under the drafts, of their dearest personal rights. You 
force them, against their wilj. to be soldierss for a 



25 

whole year. You drag them from their wives, their 
children, their occupations, their professions and 
tradesi You consign them to the camp, and to the 
hardships and toils of a common soldier. You ruin 
them. Take the farmer from his plough — the 
tradesman from his shop — the laborer from his em- 
ployment, and what but ruin can await men of mo- 
derate means and large families, depending upon 
daily industry fqs* maintenance and support ? When 
they return, at the close of the year, they will find 
their farms unproductive and in ruins — their custo- 
mers gone — their business passed away into other 
hands, and their families in want. What will be- 
come of men, with small means, dependent upon 
daily and steady exertion? What will }. come of 
tenants who cultivate the lands of other men ? Of 
the mechanic or laborers on whom this lot may fall? 
They will, I repeat it, be ruined. Besides— whilst 
ve thus injure and destroy their families we at the 
same time make slaves of them. We deprive tlom, 
or a year, of the inestimable right of civil libr 'y . 
We place them under martial law — expose them ^ 
military tribunals — to ignominious punishment — p t T 
haps to death itself, for asserting what the;. belife Ve 
U be their unalienable right. You make tin m sla es 
b their officers, many of whom will be their Suit 
cior* ' orth and standing in society— perhaps to 
I boys, who having never been taught 

o obey, are sure to be insolent and 
command, 
the inevitable fate of your militia 
^re to perform this cruel service, 
they to be thus imposed upon ? 
Uhat it is to save the country i 
jr, sir, to save the country by 
St- The people do not require us— they 

wii save i jm. What conso- 

lation be saved at such a price ? 

If this probably will, another 

year, 1< novided. The whole 

country i \ and ruined, Wc 

to joiniu . 0) or you expose them to 

n 



36 

ought to remember that we are legislating for Ame^ 
rican freemen. We may assure ourselves, that our 
country men possess tins honorable trait of charac- 
ter, that whilst they will be ever ready to submit t 
us if we are in the right, they will be equally < 
the alert to resist, if we are in the wrong. 

This bill also attacks the rights and sovereig 
of the state governments. Congress is about to iw 
their undoubted rights ; to take fyoin them 1 
militia. J3y this bill we proclaim that we will 
their men — as many as we please — when and v 
and for as long a time as we see lit, and i< 
service we see proper. Do gentlemen of th< majo- 
rity seriously believe that the people and t tie 
governments will submit to this claim? r h C 
believe that all the states of this union wi; uf 
to tliis usurpation? Have you attended t<* 
] emu aud almost unanimous declaration a- 
ion of the Legislature of Connecticu 
x )ii examined the cloud arising in the 

-I yet perceive that it is black, alarming 
tou s ? Do y ou w i s h to put a match t : : . 
plujtge the country into discord and civ irar ? 
vh^n ti» s enemy is at hand ? No, yo; do not 
ca -unot id ean to bring about such ills ; yon m 
ftiG necessity of union at such a time -is. 

I speak not in the language of menace, 
me entreat you to desist from this 
sores. Give up, I entreat you, a I e harsh 

^ of this bill. Indeed you v ant no 
The existing laws are sufficient for 
Give up also, I conjure you, by * 

of our c nunon country— give m< s 

you con emplate for raising am n. 

Rely upon it, the people will you in 

such measures. Let me again ■ cal 

men, do vou seriously believe v '< : his 

Fnion will submit to your c( m ? 

Suppose that New England r con- 

dition do you reduce the hern 

States, which may be disp You 

will either invite them, by tl. elings 



27 

burthens to which the others successfully object, 
T I n they will be punished for iheir loyalty and 
otion. Be rc-assureu, by me, that these mea- 
re not required to defend the country. You 
0;v- > right to defend the country by such means. 
Mich defence will leave it not worth defending. It 
p me to offer any advice to this majority — 
but 1 to me, for a moment longer ; hearken to 
•st entreaty ; that you defend the country by 
onal means ; by such means as the People 
ha^ i accustomed to, and which will command 

fidence and approbation — give up, 1 again 
these cruel plans oi compulsory service. 
I, in season, that if you do not, you will 
eonvuh lis union to its very centre. Disguise 
u may, the People will discover the en- 
:;e of conscription. Let your defensive 
ii our own soil — a few well disciplined 
operly posted and commanded, aided by 
\ ill perform wonders. Renumber that 
than 1500 men have foiled and driven 
grace the best appointed and most nu- 
tliat Britain has ever had in Canada. 
tes by voluntary enlistment only Be un- 
noappi tension of failure. Emp ityoffi- 

cruiting sci" Fura em with 

ep them cc I The 

out are abu 3 com- 

they are l ra. En- 

voi unt er corps ; ; Hinder 

laws; arm tl 11 them not 

homes until the anted. >{espect 

(Heii : l interests. ' n id will 

by to their con- rid i. Leave 

commanders. Interfere not with 

anaents respecting their militia, but 

> make exertions for the common 

? an act guaranteeing the pay of the 

:wditia^ wj be advanced by the states. Pur- 

s i onst and conciliatory course, and you 

u upon the strength, valor, and patrio- 

ti me people. 

mam 



IRBN77 



